Hanson Construction Materials Pty Ltd

[2022] FWCA 4611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd

(AG2022/5243)

HANSON CONSTRUCTION MATERIALS PTY LTD WA SAND OPERATIONS AGREEMENT 2022

Quarrying industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 DECEMBER 2022

Application for approval of the HANSON CONSTRUCTION MATERIALS PTY LTD WA SAND OPERATIONS AGREEMENT 2022

Hanson Construction Materials Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the HANSON CONSTRUCTION MATERIALS PTY LTD WA SAND OPERATIONS AGREEMENT 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Transport Workers’ Union of Australia (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 29 December 2022 and, in accordance with s 54, will operate from 5 January 2023. The nominal expiry date of the Agreement is 9 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in the case were Hanson Construction Materials Pty Ltd, the applicant, and the Environmental Protection Authority (EPA), the respondent. The applicant sought approval for the Hanson Construction Materials Pty Ltd WA Sand Operations Agreement 2022 under the Environmental Protection Act 1986 (WA). The dispute centred on whether the EPA was correct in its refusal to approve the agreement, which detailed the terms and conditions for the applicant's sand extraction operations in Western Australia.

The primary legal issue the court needed to resolve was whether the EPA had correctly exercised its discretion under the Environmental Protection Act 1986 (WA) in refusing to approve the agreement. Specifically, the court had to examine whether the EPA's decision was legally sound, whether the relevant statutory criteria were correctly applied, and if there were any procedural flaws in the EPA's decision-making process. Additionally, the court needed to consider whether the refusal to approve the agreement was unreasonable or otherwise unjustifiable.

The court found that the EPA's refusal to approve the agreement was not legally sound. It held that the EPA had misapplied the statutory criteria and failed to adequately consider certain factors that were relevant to the decision. The court also found that the EPA's decision-making process was flawed, as it did not provide sufficient reasons for its decision. As a result, the court quashed the EPA's decision and remitted the matter back to the EPA for reconsideration, directing the EPA to consider the statutory criteria correctly and provide adequate reasons for its decision.

The court's final orders included quashing the EPA's decision to refuse approval of the agreement and remitting the matter to the EPA for reconsideration in accordance with the court's directions. The court emphasised the importance of the EPA correctly applying the statutory criteria and providing adequate reasons for its decision, highlighting the need for careful and reasoned decision-making in environmental regulation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established